Little v. Libby , 2 Me. 242 ( 1823 )

Mellen C. J.

delivered the opinion of the Court.

The facts in this case present the defendant as having been for a long period in possession of the plaintiff’s land ; but at the same time as having for many years past disclaimed all pretence of title or claim to it; and expressly disavowing any intention of considering his possession as adverse to the rights of the plaintiff. — In such circumstances, nothing but an unbending principle of law ought to defeat the present action, and turn him round to another-remedy ; yet if such a principle, though purely of technical law, should be found applicable to the case, it must of course have its operation. — We will examine and see if such be the fact.

It is not necessary to give any other definition of disseisin than was given to the jury. To constitute a disseisin, the person claiming to have gained a title by disseisin must prove that his possession must not only have continued a sufficient length ’of time, but must also have been open, notorious, exclusive and adverse. — The evidence upon this point having been all laid before the jury, they have decided that neither Moses Little nor the plaintiff was ever disseised of the land in question. This fact being thus settled, the next inquiry is, whether there is any legal objection against maintaining the present action. In the case of Wells v. Prince, 4 Mass. 64. it was decided that, upon the dhath of a devisor, dying seised, the devisee becomes seised without an actual entry, where the lands are vacant and without an occupant, or in possession of a stranger under or acknowledging the title of the devisee. There are numerous facts in this case shewing the acknowledgment of the plaintiff’s title by the defendant; and therefore an entry by the plaintiff in form, before commencing the action was unnecessary, as he was seised before such entry under the devise in his father’s will. But even if this point admitted of any doubt, there was proof submitted to the consideration of the jury tending to shew that the defendant had yielded up to the plaintiff all possessory title, if he had any; and part of the instruction of the Judge to the jury was, that if they believed such proof, it might furnish evidence of what was in law an actual entry; and on that ground they might find for the plaintiff. Their verdict shews they did, believe the evidence and find the fact. The plaintiff therefore, being seised of the lands, and the acts of the defendant not amounting to a disseisin, they must be considered as no more than successive acts of trespass committed on the plaintiff’s land; Such is the principle even where there has been a disseisin, which has afterwards been purged by an entry. Thus if A. six years ago disseised B., B. may recover in an action of trespass for the first wrongful act which constituted the commencement df the disseisin ; but during its continuance B. can maintain no such action for A's intermediate acts. But.B. may enter and put an end to the disseisin; and may then maintain an action of trespass and recover of A. damages for all those intermediate wrongful acts; the entry of B. in such case having a retrospective operation, and giving B. the same rights during the whole period, as though he had not been disseised. In the case before us, the testator was never disseised; — and the plaintiff was never disseised; therefore no special entry was necessary to give the right of action;

But it has been urged that from the facts reported the Court must consider Libby as the tenant at will of the plaintiff; and therefore, as no notice to quit was given, an action df trespass will not lie against him. The relation of landlord and tenant is always created by contract, either express or implied. It cannot exist,without such contract. — What is the evidence of such contract and tenancy in the present case ? On a certain occasion — the time not particularly mentioned — the defendant was called on by the plaintiff’s attorney to pay some rent for the use of the land. The defendant made no agreement to pay any; but said it would do no injury to the plaintiff for him (the defendant) to improve" the land; and we hear of no reply or assent to this observation. On another ohcasion, he denied that he did improve it; which might be consistent with his occasionally depasturing it. — Here, then, is no express contract for the tenancy supposed. — From what facts then is the contract to be implied? A year and a half sinee, the plaintiff’s attorney and the defendant are found conversing about the character of the defendant’s possession ; and he distinctly disavowing the intention, which had been imputed to him, of intending to hold the lands by possession. — Does this conversation recognize any such relation as is supposed ? Does it not clearly shew that neither party had any such idea ? Doe's hot the plea of soil and freehold, which the defendant has filed, shew that he claimed at last to hold the land by his possession, notwithstanding his repeated declarations to the contrary and propositions to purchase ? — The case furnishes nothing but some uncertain and ambiguous facts relating to this point-, from which the defendant’s counsel have inferred the relation of landlord and tenant. But the present defence is not of such a character as to claim from the Court any solicitude to draw conclusions against the support of the action from doubtful circumstances ; and infer a tenancy to defeat it, from acts and expressions which may, with perfect consistency, receive á different construction.

On the whole, we perceive no reason for sustaining the motion for á new trial; and there must be

Judgment on the verdict.